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Sk. Nafel Ali Vs. Sm. Nihar Bala Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 578 of 1971
Judge
Reported inAIR1981Cal273
ActsBengal Public Demands Recovery Act, 1913 - Section 7; ;Evidence Act, 1872 - Section 114; ;Code of Civil Procedure (CPC) , 1908 - Section 151
AppellantSk. Nafel Ali
RespondentSm. Nihar Bala Das
Advocates:Mihir Kumar Ray, Adv.
DispositionAppeal allowed
Cases ReferredAtma Ram Kejriwal v. Abhoy Kumar Sinha
Excerpt:
- .....had suffered substantial injury, but both the courts on the presumption of official act by the process server under section 114(e) held that the notice under section 7 of the act had been duly served. the suit was also found to be barred by limitation.5. mr. mihir kumar roy, the learned advocate for the appellant challenges both the findings.6. admittedly there was no personal service, but substituted one. the notice was said to have been affixed at the outer door of the plaintiff, as he was found absent. it is contended by mr. roy that the process server was to find whether there was any adult male member in the family and also to make bona fide attempts to find him out. it is observed by the appellate court that the process server was not examined by the respondent, and as such it.....
Judgment:

Sudhindra Mohan Guha, J.

1. This second appeal by the plaintiff is directed against the decision of the Subordinate Judge, 4th Court, Alipore affirming the judgment and decree of dismissal passed by Sri A. N. Saha, Munsif, Alipore in T. S. No. 483 of 1962.

2. The land in suit comprising an area of 2.70 acres and appertaining to khatiaaNo. 209 of mouza Banagram was held by the plaintiff under the State of West Bengal at an annual jama of Rs. 97.25. The public demands for the years 1364-66 B. S. were due. A certificate proceeding was started to realise the amount due. The case of the plaintiff was that the land in suit was illegally put to sale without service of notice upon the plaintiff, as provided under the P. D. R. Act, and purchased by the defendant at auction at a shockingly low price of Rs. 301/-only. After the confirmation of sale on 10-4-1962 the defendant was said to have made attempts to take possession of the same. Hence the suit,

3. The suit was contested by the defendant. All processes were said to have been duly served and the plaintiff was said to have knowledge of the certificate proceeding. The plaintiff who brought the suit under Section 36 of P. D. R. Act was to establish that the notice required by Section 7 of the Act had not been served. Thus on the ground of substantial injury the plaintiff wanted to have the sale set aside.

4. It was found that the plaintiff had suffered substantial injury, but both the Courts on the presumption of official act by the process server under Section 114(e) held that the notice under Section 7 of the Act had been duly served. The suit was also found to be barred by limitation.

5. Mr. Mihir Kumar Roy, the learned Advocate for the appellant challenges both the findings.

6. Admittedly there was no personal service, but substituted one. The notice was said to have been affixed at the outer door of the plaintiff, as he was found absent. It is contended by Mr. Roy that the process server was to find whether there was any adult male member in the family and also to make bona fide attempts to find him out. It is observed by the appellate Court that the process server was not examined by the respondent, and as such it could not be known whether any due and reasonable diligence was made by the process server to trace out the debtor before fixing a copy of the notice on the outer door. Of course, both the Courts were conscious that in the event of denial of service by the plaintiff, the onus would shift to the defendant to prove the due service. The plaintiff examined as many as four witnesses besides himself. P. W. 2 Abedali denied that he had figured as an attesting witness. But in cross-examination he hesitated in denying the signature. But the defendant did not dare to cite any other mokabila witness --not to speak of the process server.

7. In this connection Mr. Roy draws my attention to a passage at page 975 of the report in the case of Gaibandha Loan Office v. Mst. Saiyadunnessa Khatun, reported in 46 Cal WN 967 : (AIR 1943 Cal 114 at p. 119) Which may be quoted here:-- 'In our judgment there is no presumption under Section 114 of the Evidence Act that a notice had in fact been served, but when the fact of service of the notice is proved, there would be a presumption under that section about the regularity of the service, namely that at the time of the service all the formalities required by the rules framed under the Public Demands Recovery Act, namely Rr. 2 to 8 of Sehedule II, had been observed.'

8. In the circumstances stated above the Courts below should not have held the service of notice under Section 7 of the Act valid merely on the presumption under Section 114 of the Evidence Act.

9. As to the point of limitation it appears that the suit was instituted on 19-11-62 and the plaint was rejected on 7-9-64 for nonpayment of proper court-fees. On an application under Section 151 of the C. P. Code the suit was restored to its original file and number on 8-9-64 -- that is the following day, when the deficit court-fees were also filed. It is found that the Court had no jurisdiction to restore the suit on an application under Section 151, C. P. Code. It is also found that the possession of the property was delivered on 25-4-62 and the suit was to be filed within a year from that date and the restoration of the suit on 8-9-64 could not have retrospective effect from the date of institution of the original suit. Reliance Was placed on a single Bench decision in the case of Gopala Krishna Pillai v. Narayanan, reported in : AIR1959Ker406 . But this decision was overruled by the Full Bench in the case of T. Kunhammad v. Narayanan Nambudri, reported in : AIR1964Ker8 .

10. To my mind the trial Court had every jurisdiction to restore the suit under Section 151, C. P. Code on payment of deficit court-fees. There will be no reason to hold that the suit would be taken to have been filed on the date of filing the deficit court-fees. Such was also the view of the Division Bench of the Allahabad High Court, in the case of Hubraj Singh v. Mt. Rama Dasi Kuer, reported in : AIR1954All719 . A suit was instituted in the Civil Court on 25-4-47. The plaint was howeves rejected, as the court-fee paid was insufficient. The suit was restored on 26-6-47 and the plaintiff paid the deficit court-fee on 28-7-47. It was held that the Court had inherent power under Section 151, C. P. Code to restore the suit and as a result of its order of restoration the suit on payment of the court-fee, was to be deemed to have been instituted on 25-4-47. A Division Bench of the Patna High Court in the case of Atma Ram Kejriwal v. Abhoy Kumar Sinha, reported in (1963) ILR 42 Pat 704 also held that the plaint will be taken to have been validly presented on the date it was filed in Court though the deficit court-fee was paid much later and there would be no bar of limitation, if the plaint had been originally filed within time.

11. It should be remembered that Section 151, C. P. Code had to be introduced to recognise the Court's inherent powers without being limited by any of the provisions in the Code. The use of such powers is not restricted only to a pending suit but for the ends of real and substantial justice can be equally applicable to a case of rejection of plaint.

12. Thus both the points agitated by the appellant are found in his favour.

13. In the result, the appeal is allowed, but without costs. The judgments and decrees of the lower Courts are set aside. The plaintiff's suit is decreed. The certificate sale in question is set aside. The plaintiff do recover khas possession of the suit property.


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